David French argues that America has both a moral duty and a legal right to continue its armed intervention in Afghanistan to protect the Afghan people from their fellow citizens, the Taliban. In an article at The Dispatch titled, “When ‘never again’ becomes ‘again and again,'” he suggests that America’s failure to continue its intervention will make it complicit in yet another holocaust as it unfolds.
Even though the immediate context of his article is the debacle of America’s withdrawal from Afghanistan, the moral and legal assertions French makes have far broader implications. Both his moral and legal arguments are found wanting.
The Moral Imperative to Intervene
The gist of French’s moral argument is that “men” have not only a right to defend the lives of others, they have a duty. To prove this point, he quotes Proverbs 24:11: “Rescue those being led away to death; hold back those who are being led away to slaughter. If you say, ‘But we knew nothing about this,’ does not he who weighs the heart perceive it? Does not he who guards your life know it? Will he not repay each person according to what he has done?”
French extends this imperative for individuals and makes it also an imperative for nation-states. Thus the United States has a moral duty to militarily intervene in Afghanistan to protect the lives of Afghan citizens.
In support of his arguments, French commends Luke Glanville’s article “Christians and the Responsibility to Protect” as providing theological justification. Not surprisingly, Glanville appeals to the parable of the Good Samaritan as an exemplar of the duty to protect.
Like French, Glanville converts an individual moral imperative into a national imperative. What he misses about the parable is that the Samaritan was called good because he voluntarily gave of his own money and time at risk that he too could fall victim to robbers.
The Samaritan did not petition the ruler to force others to spend their money, use their time, or risk their lives. There is no virtue in being charitable with other people’s money, time, or lives — even if other people’s money is laundered through the Department of State or an Office of Faith-Based and Community Initiatives.
The United States has a military comprised mostly of young men and women who voluntarily have sworn to defend the Constitution, and therefore their country, even if it costs them their lives. “Greater love has no one than this, that he lay down his life for his friends,” says the Gospel of John, 15:13.
But French does not call upon himself nor his friends nor readers to rescue those being led away to slaughter (although there are lots of empty seats on planes flying into Kabul). He calls upon the government to order those young men and women who have promised to lay down their lives for their country in defense of our Constitution to lay down their lives for those in another country, millions of whom are unwilling to make that sacrifice for their own country.
The Legal Authority to Intervene
The Hague Convention of 1907 requires an occupying power “to restore, and ensure, as far as possible, public order and safety.” Assuming that the United States had been an occupying power in Afghanistan, it certainly complied, insofar as possible, with the Hague Convention, and French does not argue otherwise. Instead, he leverages the current crisis to argue for the moral duty and legal right to pursue armed humanitarian intervention in countries engaged in serious violations of human rights even if they have not attacked the United States.
The legal arguments French makes for justifying armed humanitarian intervention are no sounder than his moral arguments. He claims that just war doctrine, international law, and American law justify unilateral armed intervention.
Properly understood, classical international law is cut whole cloth from just war doctrine, and classical international law provides the legal standards that define Congress’s power to declare war. Thus it is of great importance to first carefully define Christian just war doctrine.
Seven elements comprise Christian just war doctrine; three of those elements are legal requirements, and four are prudential considerations. The three legal elements are just cause, right authority, and proportionality of ends. These three elements mirror the components of a complaint in a civil lawsuit. A complaint must allege a cause of action (just cause), jurisdiction to render a judgment (right authority), and a remedy that compensates the victim (proportionality of ends).
The four prudential considerations are reasonable hope of success, last resort, right intention, and end of peace. The prudential considerations mirror those entailed in deciding whether to initiate a civil lawsuit. A litigant asks: What are my chances of winning (hope of success), can I resolve this by alternative means of dispute resolution (last resort), are my motives proper (right intent), and will my relationship with the other party be better or worse once litigation is over (end of peace)?
French’s first misstep in appealing to just war doctrine in support of the legality of armed intervention is to rely on Joseph Loconte’s article “A Christian Case for Humanitarian Intervention” in identifying the elements of just war doctrine. The elements that Loconte identifies — right intention, last resort, proportionality, and reasonable prospect of success — are mostly prudential considerations. Only proportionality is a legal element. The most critical omission is that of just cause: Has a foreign state committed a violation of international law against the United States?
Just Cause No Longer Exists
The United States has jurisdiction over only offenses committed against itself. In making an appeal to just war doctrine, French misses this essential element.
Twenty years ago, when the United States invaded Afghanistan, it had just cause. Arguably Congress had properly declared war when it issued an Authorization for Use of Military Force resolution. But the bounds of proportionality of ends have by now been exceeded, and for that reason, it is necessary for French to try to make a case that Christian just war doctrine justifies armed humanitarian intervention.
The authorities to whom French appeals in making his case are Cicero, Ambrose, Augustine, and Aquinas. Cicero, a Roman pagan, and the three Christian writers agreed upon three ends that justify the use of armed force — to effect reprisals (punish), to exact reparations (compensation), and to act in self-defense. French omits any discussion of these ends in his just war analysis.
A Secular Holy War
Cicero, however, advocated another end for which armed force could be used — to impose the ideals of Rome on other nations, which would be a blessing to them. In effect, Cicero advocated the legitimacy of engaging in a secular holy war. This is essentially what French promotes with his arguments for armed humanitarian intervention.
But humanitarian intervention, except in defense of one’s own nationals, was not a just cause under just war doctrine and classical international law. Although some early Christian writers advocated a form of holy war, by the 13th century Pope Innocent IV and the canon lawyer Hostiensis denied that war could be made on pagans simply because they were unbelievers.
Grotius and Vattel are arguably the most important of the writers who incorporated just war doctrine into their classical international law treatises. Vattel was a jurist whom the Framers and early generations of American lawyers frequently consulted when dealing with international law issues. This makes Vattel’s treatment of the use of military force in international relations of utmost importance for understanding the meaning of Congress’s power to declare war.
The constitutional text does not define that power, but international law, which is necessarily part of our law, does define that power. Congress, which has the power to declare war, must determine that there is a just cause for going to war and must authorize a remedy proportionate to the loss or injury the United States has suffered. Following the determination that the United States has just cause, Congress must give its attention to the prudential considerations and decide whether it is in the national interest to press its claims by an appeal to arms.
The Weinberger Doctrine, often acclaimed as a revival of just war doctrine, was formulated in large part to avoid another disaster like that we experienced in Vietnam. These considerations include vital national interest, continual assessment of objectives, clear intention of winning, and last resort. Although the formulation of those considerations may provide sound prudential guidance, they completely miss the legal requirements of just cause, proportionality of ends, and right authority. French’s articulation of just war theory tracks with the Weinberger Doctrine, except for his appeal to armed humanitarian intervention.
Immanentizing the Eschaton in Afghanistan
Cicero’s doctrine of secular holy war, not Christian just war doctrine, supports French’s case for humanitarian intervention. Echoes of holy war doctrine are evident in President George W. Bush’s Second Inaugural Address. Transposing the text of Leviticus 25:10, he described America’s mission in messianic terms: “America . . . proclaims liberty throughout all the world, and to all the inhabitants thereof.” Bush promised those living “in tyranny and hopelessness” that “the United States will not ignore your oppressions or excuse your oppressors.”
How ironic that the Bush II leadership team was so willing as adults to send young Americans to export democracy by force of arms in the Middle East but had been so unwilling as young men to risk their lives in saving Vietnam.
The Bush Doctrine bears a marked resemblance to Loconte’s description of American exceptionalism. American exceptionalism is often associated with John Winthrop’s allusion to Matthew 5:14 that we should be “A City Upon a Hill.” By that, Winthrop meant that we should serve as a model for other nations to follow.
Loconte transforms that notion of American exceptionalism into a justification for using armed force to promote democracy and human rights around the globe. Loconte has exchanged Winthrop’s “City Upon a Hill” for Cicero’s Rome, the “Harlot that sits upon seven hills.” (Revelation 17:9.)
The Afghans Need Spiritual Liberation First
A view of human nature that is fundamentally non-Christian underlies American foreign policy, whether pursued by military force or more “charitable” forms of assistance. It assumes that all people yearn to be free and that by removing their oppressors, they indeed breathe and conduct themselves the way we think free men ought to behave.
This flawed view is visible in Bush’s Second Inaugural Address. The fruit of that view is manifest in Iraq and Afghanistan. Twenty years after the United States removed the oppressor in Afghanistan, the oppressor is back in power. The people of Afghanistan live under a more fundamental bondage than the Taliban. It is the bondage of sin, a bondage all the military force in the world is powerless to change. The only force that will free the Afghan people is spiritual, not military.
French identifies the United Nations as playing an important role in protecting human rights in the post-World War II era. Again citing Loconte, French argues that the U.N. uses the same criteria for justifying the use of force as did Augustine. Arguably, the Security Council does have the authority to resort to armed humanitarian intervention to protect human rights.
In fact, the Reagan Doctrine was premised on the belief that the United Nations has a legal duty to protect people from abuses committed by their own governments. Jeane Kirkpatrick, who formulated the doctrine, argued that the Security Council has a duty to protect human rights, and when it fails to do so, that power passes to the individual member states. Armed humanitarian intervention — whether invoked by Cicero, the U.N., Presidents Bush and Reagan, neocons, or well-meaning Christians motivated by a misdirected humanitarian impulse — is a version of secular holy war nonetheless.
The U.N. Violates the U.S. Constitution
There is another even more fundamental legal problem with the United Nations, one that is almost universally missed. The U.N. was formed in violation of a foundational principle of American constitutionalism: only a people can institute a government. In violation of this principle, President Truman, with the consent of the Senate, delegated part of a governmental power–the power to declare and make war–to an international organization, without obtaining the consent of the people.
The United Nations’ vision for a world order that transcends nation-states tracks Cicero’s vision of a world order without borders. This age-old vision that dates from the Tower of Babel is directly opposed to a world order based on a multiplicity of nation-states that God has established as seen in Deuteronomy 32:8 and Acts 17:26-27. He imposed a multistate system as a check on the depravity of human nature, but also that men might seek Christ as the only promise for peace.
The Roman Empire was the culmination of a succession of pagan empires with aspirations of universal jurisdiction — Babylon, Persia, Greece, and Rome, as seen in Daniel 2 and 8. Post-Christian nations place their hope in the United Nations while the Taliban places its hope in a worldwide caliphate, each convinced, as was Rome, that their value system is a blessing for all mankind.
Hope of the Whole Earth
Rome, the city built on seven hills, has been replaced by another city, Zion, which is the city upon a hill:
In the last days the mountain of the Lord’s temple will be established as chief among the mountains . . . and all nations will stream to it. . . . ‘He will teach us his ways so that we may walk in his paths.’ The law will go out from Zion.
As we anticipate and work toward that day, governments and militaries are still necessary to wield the sword of justice in restraining evil. But it is the work of churches and missionaries who are entrusted with the ministry of reconciliation and who wield the sword of the Spirit that alone is able to effect positive change in the lives of individuals and nations, for “Where the Spirit of the Lord is, there is Liberty.”
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